Appeal by defendant from judgment entered 28 September 2005 by
Judge B. Craig Ellis in Scotland County Superior Court. Heard in
the Court of Appeals 16 November 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Laura J. Gendy, for the State.
Daniel F. Read for defendant-appellant
Defendant Tony Wayne Dorton appeals from a judgment of the
superior court resentencing him pursuant to this Court's decision
in State v. Dorton, 172 N.C. App. 759, 617 S.E.2d 97 (hereinafter
"Dorton I"), disc. review denied, 360 N.C. 69, 623 S.E.2d 775
(2005). In Dorton I, this Court found no error as to defendant's
trial, but remanded for resentencing in light of the United States
Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 159
L. Ed. 2d 403, 124 S. Ct. 2531 (2004). Dorton I, 172 N.C. App. at
771, 617 S.E.2d at 105. Two days after defendant was resentenced within the
presumptive range for offenders with a prior record level of I,
defendant was brought back into court, and the State presented
evidence of a prior assault conviction of which the State claimed
to have been previously unaware. The trial court resentenced
defendant again, but this time within the presumptive range for
offenders with a prior record level of II. On appeal, defendant
asserts various arguments contending that the trial court was
barred from resentencing him as a prior record level of II.
Because we find defendant's arguments unpersuasive, we affirm.
A full recitation of the facts underlying defendant's
conviction for second degree sexual offense _ as a result of an
incident involving his 16-year-old daughter _ is set forth in
. Following defendant's conviction, the trial court
concluded that defendant had a prior record level of I based upon
a prior record level worksheet indicating defendant had no prior
convictions other than routine traffic offenses. The trial court
then found as an aggravating factor that defendant had taken
advantage of his position of trust or confidence to commit the
offense. The court further found as mitigating factors that
defendant had a support system in the community and was suffering
from both mental and physical conditions that, although
insufficient to constitute a defense to the crime, significantly
reduced his culpability. After concluding that the factor in aggravation outweighed the
factors in mitigation, the trial court sentenced defendant to an
aggravated range sentence of 92 to 120 months imprisonment.
Defendant appealed and, in Dorton I
, this Court found no error as
to defendant's trial, but remanded for resentencing in light of
The resentencing hearing was held before Judge B. Craig Ellis
at the 26 September 2005 Criminal Session of Scotland County
Superior Court. Defendant, who, on 20 September 2005, had executed
a waiver of any counsel for the resentencing proceeding appeared
unrepresented at the 26 September 2005 hearing. At that hearing,
the State argued that defendant should be sentenced in the
presumptive range while defendant urged, both in writing and
orally, that the trial court find various mitigating factors and
sentence him within the mitigated range. Still under the
impression that defendant had a prior record level of I, the trial
court resentenced defendant within the presumptive range for that
level to a term of 73 to 97 months imprisonment.
Following a motion to re-open by the State, the trial court
held another sentencing hearing two days later, still during the 26
September 2005 Criminal Session. At the 28 September 2005 hearing,
the State presented evidence of defendant's 2002 conviction for
assault on a female (02 CRS 52069). The State claimed it had
previously been unaware of that conviction and argued that the
assault on a female conviction elevated defendant's prior record
level from a I to a II. After hearing arguments from both sidesand accepting evidence as to the assault conviction, the trial
court modified its 26 September 2005 judgment by resentencing
defendant as a prior record level II to a presumptive range
sentence of 91 to 119 months imprisonment. Defendant subsequently
filed a motion "for correction of sentencing error/right to
counsel," which the trial court denied. Defendant timely appealed
to this Court.
 We first address defendant's jurisdictional argument that,
because our Supreme Court had yet to rule on his petition for
discretionary review following this Court's decision in Dorton I
the trial court lacked subject matter jurisdiction to hold any
(See footnote 1)
"The general rule is that the jurisdiction
of the trial court is divested when notice of appeal is given . .
. ." State v. Davis
, 123 N.C. App. 240, 242, 472 S.E.2d 392, 393
Nevertheless, when a court of the appellate division files an
opinion, that court's "clerk shall enter judgment and issue the
mandate of the court 20 days after the written opinion of the court
has been filed with the clerk." N.C.R. App. P. 32(b). Once this
mandate issues, the clerk of the superior court "must file thedirective of the appellate court and bring the directive to the
attention of the district attorney or the court for compliance with
." N.C. Gen. Stat. § 15A-1452(c) (2005) (emphasis
added). If a party wishes to stay the effect of a mandate of this
Court, "[a]pplication may be made . . . to the Supreme Court for a
writ of supersedeas to stay the execution or enforcement of a
judgment, order or other determination mandated by the Court of
Appeals when a notice of appeal of right or a petition for
discretionary review has been or will be timely filed . . . to
obtain review of the decision of the Court of Appeals." N.C.R.
App. P. 23(b).
In the present case, Dorton I
was filed on 16 August 2005, the
corresponding mandate was issued on 6 September 2005 and filed with
the Scotland County Superior Court on 12 September 2005, and the
resentencing hearings were held on 26 and 28 September 2005.
Although defendant petitioned the Supreme Court for discretionary
review under N.C.R. App. P. 15(a), nothing in the record indicates
that defendant sought a writ of supersedeas under N.C.R. App. P.
23(b) to stay the effect of this Court's mandate. Absent such a
stay, the superior court was statutorily required under N.C. Gen.
Stat. § 15A-1452(c) to comply with the mandate of this Court,
irrespective whether defendant's petition for discretionary review
was still pending. The trial court, therefore, had jurisdiction to
conduct the resentencing hearing.
 Defendant next argues that the trial court deprived him of
his right to counsel in the second resentencing hearing by failing
to conduct a "new inquiry" into defendant's prior waiver of counsel
for resentencing. "Once given, a waiver of counsel is good and
sufficient until the proceedings are terminated or until the
defendant makes known to the court that he desires to withdraw the
waiver and have counsel assigned to him." State v. Hyatt
, 132 N.C.
App. 697, 700, 513 S.E.2d 90, 93 (1999). Thus, it is the
responsibility of the defendant to notify the court if he changes
his mind and wishes to have counsel. See State v. Watson
, 21 N.C.
App. 374, 379, 204 S.E.2d 537, 540-41 ("The burden of showing the
change in the desire of the defendant for counsel rests upon the
defendant."), cert. denied
, 285 N.C. 595, 206 S.E.2d 866 (1974).
This Court has previously held that, to satisfy this burden, "a
criminal defendant must move the court for withdrawal of the
, 132 N.C. App. at 702, 513 S.E.2d at 94.
Here, defendant does not contest the validity of his original
waiver of counsel for resentencing following Dorton I
, which he
signed just eight days prior to the second resentencing hearing,
and defendant admits he "waived his right to appointed counsel."
Defendant expressly confirmed at the initial resentencing hearing
that he wished to represent himself and never moved at the second
hearing to withdraw that waiver. Accordingly, we conclude that the
trial court did not err by failing to inquire as to whether
defendant wished to withdraw his prior waiver of counsel. See id.
(holding trial court did not need to inquire whether defendantwished to withdraw previous waiver of counsel when defendant "never
moved the court to withdraw his waiver").
 We turn now to defendant's argument that the State, by
failing to appeal the trial court's determination of his prior
record level in Dorton I
, was precluded under the law of the case
doctrine from challenging defendant's prior record level at
resentencing. Defendant correctly notes that, although the State
could have appealed the determination of his prior record level in
, it did not do so. See
N.C. Gen. Stat. § 15A-
1445(a)(3)(a) (2005) (State may appeal any sentence that "[r]esults
from an incorrect determination of the defendant's prior record
Under the law of the case doctrine, "when an appellate court
passes on a question and remands the cause for further proceedings,
the questions there settled become the law of the case, both in
subsequent proceedings in the trial court and on subsequent appeal,
provided the same facts and the same questions which were
determined in the previous appeal are involved in the second
appeal." Hayes v. City of Wilmington
, 243 N.C. 525, 536, 91 S.E.2d
673, 681-82 (1956). Although more prevalent in civil matters, this
doctrine applies with equal force in criminal proceedings. See,
, State v. Summers
, 351 N.C. 620, 622, 528 S.E.2d 17, 20
(2000); State v. Boyd
, 148 N.C. App. 304, 308, 559 S.E.2d 1, 3
(2002). This Court just recently considered, for the first time,
"whether the 'law of the case doctrine' applies to 'matters which
arose prior to the first appeal and which might have been raised
thereon but were not.'" Taylor v. Abernethy
, 174 N.C. App. 93,
102, 620 S.E.2d 242, 249 (2005) (quoting 5 Am. Jur. 2D Appellate
§ 608 (1995)), cert. denied
, 360 N.C. 367, 630 S.E.2d 454
(2006). Contrary to defendant's position here, we concluded that
the law of the case doctrine is "specifically limited . . . to
points actually presented and necessary for the determination of
(emphasis added). As the proper calculation of
defendant's prior record level was neither actually presented nor
necessary to our determination in Dorton I
, the law of the case
doctrine cannot, under our holding in Taylor
, preclude the State
from raising the issue at resentencing. See also Creech v. Melnik
147 N.C. App. 471, 474, 556 S.E.2d 587, 589 (2001) (holding
doctrine did not apply to dicta in prior appellate opinions in the
case, but only to issues that were in fact presented and necessary
for decision), disc. review denied
, 355 N.C. 490, 561 S.E.2d 498
 Defendant alternatively argues that the rule of lenity
requires this Court to bar the State from raising an issue
regarding defendant's prior record level by post-trial motion when
the State could have challenged that determination on direct
appeal. "In general, when a criminal statute is unclear, the
long-standing rule of lenity 'forbids a court to interpret a
statute so as to increase the penalty that it places on anindividual when the Legislature has not clearly stated such an
intention.'" State v. Crawford
, 167 N.C. App. 777, 780, 606 S.E.2d
375, 377-78 (quoting State v. Boykin
, 78 N.C. App. 572, 577, 337
S.E.2d 678, 681 (1985)), disc. review denied
, 359 N.C. 412, 612
S.E.2d 324 (2005).
A defendant's motion for appropriate relief may be denied if
"the defendant was in a position to adequately raise the ground or
issue underlying the [motion for appropriate relief in a previous
appeal] but did not do so." N.C. Gen. Stat. § 15A-1419(a)(3)
(2005). According to defendant, as the State could have challenged
defendant's prior record level in Dorton I
, we should interpret
N.C. Gen. Stat. S 15A-1419(a)(3) "consistent with the rule of
lenity" to bar the State from now raising the issue.
The rule of lenity, however, is a rule of statutory
construction that requires ambiguity. Crawford
, 167 N.C. App. at
780, 606 S.E.2d at 378. Defendant does not argue, and we see no
reason to conclude, that N.C. Gen. Stat. § 15A-1419 is ambiguous.
Moreover, even if N.C. Gen. Stat. § 15A-1419 were ambiguous, the
rule of lenity only applies when an ambiguity potentially increases
the "penalty" to which a defendant is exposed. See, e.g.
, 167 N.C. App. at 781, 606 S.E.2d at 378 (statutory
ambiguity resulted in indictment that charged either a misdemeanor
or a felony); State v. Hanton
, 175 N.C. App. 250, 259, 623 S.E.2d
600, 607 (2006) (statutory ambiguity led to interpretation of out-
of-state conviction that was either a Class A1 misdemeanor or a
Class 2 misdemeanor). Defendant does not argue, and we again seeno reason to conclude, that any ambiguity in N.C. Gen. Stat. § 15A-
1419 potentially increases or is even related to penalties.
Accordingly, we conclude that the State was not precluded under
either the law of the case doctrine or the rule of lenity from
challenging defendant's prior record level on remand.
 Defendant next contends that the State was required to
submit a written motion in the trial court giving him notice of the
State's intent to present evidence of the assault on a female
conviction. As defendant has pointed to no authority suggesting a
written motion was required, we need not address this argument.
N.C.R. App. P. 28(b)(6) ("Assignments of error . . . in support
of which no reason or argument is stated or authority cited
be taken as abandoned." (emphasis added)). In any event, our case
law has long held that resentencing during the same session of
court, even when new evidence is presented, does not require a
written motion. See, e.g.
, State v. Quick
, 106 N.C. App. 548, 557-
60, 418 S.E.2d 291, 297-98 (resentencing a defendant, in light of
a new report from the Department of Correction, following oral
motion by the State), disc. review denied
, 332 N.C. 670, 424 S.E.2d
 Defendant also argues that the trial court, by modifying
its original resentencing judgment to sentence defendant as having
a prior record level of II, impermissibly corrected a judicial,rather than clerical, error. Generally, a trial court may "'amend
its records to correct clerical mistakes or supply defects or
omissions therein,'" but may not, "'under the guise of an amendment
of its records, correct a judicial error.'" State v. Jarman
N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quoting Davis
N.C. App. at 242-43, 472 S.E.2d at 393-94).
Nevertheless, "[u]ntil the expiration of the term, the orders
and judgment of a court are in fieri
, and the judge has the
discretion to make modifications in them as he may deem to be
appropriate for the administration of justice." Quick
, 106 N.C.
App. at 561, 418 S.E.2d at 299. Accordingly, "the trial judge may
hear further evidence in open court, both as to the facts of the
cases and as to the character and conduct of the defendant." Id.
See also State v. Edmonds
, 19 N.C. App. 105, 106-07, 198 S.E.2d 27,
27-28 (1973) (holding that trial court had jurisdiction to modify
a judgment two days after its entry to include an active term of
imprisonment rather than a suspended sentence).
It is uncontested in the present case that both defendant's 26
and 28 September 2005 resentencing hearings occurred during the
same term of criminal court. The trial court did not, therefore,
err by modifying its resentencing judgment during that session.
, 106 N.C. App. at 561, 418 S.E.2d at 299 (trial court did
not err by resentencing defendant the day after his initial
 Defendant next contends that, under N.C. Gen. Stat. § 15A-
1335 (2005), his new sentence was impermissibly more severe than
his prior sentence. N.C. Gen. Stat. § 15A-1335 provides that when
a "sentence imposed in superior court has been set aside on direct
review or collateral attack, the court may not impose a new
sentence for the same offense . . . which is more severe than the
prior sentence less the portion of the prior sentence previously
Defendant was not, however, sentenced more severely on remand.
Defendant was originally sentenced to 92 to 120 months
imprisonment. Dorton I
, 172 N.C. App. at 762, 617 S.E.2d at 100.
On resentencing, defendant was ultimately resentenced for the same
conviction to 91 to 119 months imprisonment with credit given for
the time defendant had already served. Defendant was not,
therefore, sentenced more severely at resentencing. Compare State
, 80 N.C. App. 711, 714, 343 S.E.2d 232, 234 (1986) (new
sentence of 18 years did not violate N.C. Gen. Stat. § 15A-1335
when initial sentence was 20 years, regardless whether trial court
consolidated offenses differently on resentencing), cert. denied
317 N.C. 712, 347 S.E.2d 450 (1986), with State v. Hemby
, 333 N.C.
331, 336-37, 426 S.E.2d 77, 80 (1993) (eight-year sentence was
"more severe" than prior eight-year sentence only because the
number of convictions for which defendant was resentenced had been
Defendant nevertheless contends that, because this Court
"struck" the portion of his prior sentence attributable to Blakely
error in Dorton I
, the highest sentence he could receive on remand
was "the maximum for a Class C, Level I," or 73 to 97 months. N.C.
Gen. Stat. § 15A-1340.17 (2005). As defendant cites no authority
for this novel interpretation of N.C. Gen. Stat. § 15A-1335, we
summarily reject it. See
N.C.R. App. P. 28(b)(6) ("The body of the
argument . . . shall contain citations of the authorities upon
which the appellant relies.").
 Defendant next argues that the trial court erred by
failing to find proposed mitigating factors defendant had presented
in a written pre-hearing motion and during his first resentencing
hearing. According to defendant, the trial court was required to
find his proposed mitigating factors because evidence of their
existence was both uncontradicted and manifestly credible. See
State v. Spears
, 314 N.C. 319, 321, 333 S.E.2d 242, 244 (1985)
(noting that "sentencing judge has a duty to find a statutory
mitigating factor when the evidence in support of a factor is
uncontradicted, substantial and manifestly credible" (emphasis
Contrary to defendant's assertion, however, the trial court
need make "findings of the aggravating and mitigating factors
present in the offense only if, in its discretion, it departs from
the presumptive range of sentences . . . ." N.C. Gen. Stat. §
15A-1340.16(c) (2005). As the trial court in the present case
entered a sentence within the presumptive range, the court did not
err by declining to formally find or act on defendant's proposedmitigating factors, regardless whether evidence of their existence
was uncontradicted and manifestly credible. See, e.g.
, State v.
, 177 N.C. App. 17, 31, 628 S.E.2d 776, 786 (2006)
("Defendant's notion that the court is obligated to formally find
or act on proposed mitigating factors when a presumptive sentence
is entered has been repeatedly rejected.").
 Finally, we address defendant's motion for appropriate
relief, in which he contends that he pled no contest to the charges
underlying the assault conviction only because the State's attorney
"told the defendant he would not use the point from the [assault]
conviction . . . in any sentencing in the pending sexual assault
charges . . . ." "'[W]hen a plea rests in any significant degree
on a promise or agreement of the prosecutor, so that it can be said
to be part of the inducement or consideration, such promise must be
fulfilled.'" State v. Collins
, 300 N.C. 142, 145, 265 S.E.2d 172,
174 (1980) (quoting Santobello v. New York
, 404 U.S. 257, 262, 30
L. Ed. 2d 427, 433, 92 S. Ct. 495, 499 (1971)). According to
defendant, his right to due process and fundamental fairness
entitles him to have the use of the prior record point from the
assault conviction set aside as a result of his alleged agreement
with the State's attorney. See State v. Sturgill
, 121 N.C. App.
629, 631, 469 S.E.2d 557, 558 (1996) (granting new trial when State
promised not to prosecute defendant as a habitual felon in exchange
for information regarding his involvement in several break-ins, andState refused to honor the bargain after defendant provided the
"When a motion for appropriate relief is made in the appellate
division, the appellate court must decide whether the motion may be
determined on the basis of the materials before it, or whether it
is necessary to remand the case to the trial division for taking
evidence or conducting other proceedings
." N.C. Gen. Stat. § 15A-
1418(b) (2005) (emphasis added). Thus, "[a]lthough the statute
authorizes the appellate court to initially determine a motion for
appropriate relief, where the materials before the appellate court
. . . are insufficient to justify a ruling, the motion must be
remanded to the trial court for the taking of evidence and a
determination of the motion." State v. Thornton
, 158 N.C. App.
645, 654, 582 S.E.2d 308, 313 (2003) (internal citations omitted).
We cannot, on direct appeal, determine defendant's motion for
appropriate relief on the basis of the materials presently before
this Court. Defendant has alleged an agreement with the State's
attorney that is not reflected in the record _ an issue that will
require an evidentiary hearing to resolve. Accordingly, we remand
defendant's motion for appropriate relief to the trial court. See
Affirmed; Motion for Appropriate Relief remanded.
Judges LEVINSON and JACKSON concur.